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Ostwald v. Beck

Court of Appeals of Nebraska

November 5, 2019

Doris Ostwald et al., appellees.
v.
Wayne Harold Beck, Appellant.

         1. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

         2. Easements: Equity. An adjudication of rights with respect to an easement is an equitable action.

         3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an equity action for a declaratory judgment, an appellate court decides factual issues de novo on the record and reaches conclusions independent of the trial court. But when credible evidence is in conflict on material issues of fact, the court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

         4. Injunction: Equity: Appeal and Error. An action for injunction sounds in equity. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court.

         5. Injunction: Motions to Vacate. When the circumstances and situation of the parties have changed so that it would be just and equitable to vacate or modify a permanent injunction, the court which granted the injunction may vacate or modify it upon motion.

         6. Injunction: Proof. The burden is on the party seeking modification of a permanent injunction to show a change in circumstance or situation sufficient to warrant such modification.

         7. Easements: Abandonment: Intent: Proof. The fact that an easement holder finds a more convenient alternative route instead of using the easement does not deprive the easement holder of the easement that [27 Neb.App. 764] remains for the holder's use and enjoyment whenever the holder has occasion to use the right.

          Appeal from the District Court for Dodge County: Geoffrey C. Hall, Judge.

          Matthew M. Munderloh, of Johnson & Mock, PC, L.L.O., for appellant.

          Blake E. Johnson and Paul A. Lembrick, of Bruning Law Group, for appellees.

          Moore, Chief Judge, and Pirtle and Bishop, Judges.

          PIRTLE, JUDGE.

         INTRODUCTION

         Wayne Harold Beck appeals from an order of the district court for Dodge County which declared that Wayne's property remained subject to an easement established in 1977 and which enjoined Wayne from interfering with the use and enjoyment of the easement by Doris Ostwald (Doris), Vernon Vodvarka, and Becky Vodvarka (collectively appellees). Based on the reasons that follow, we affirm as modified.

         BACKGROUND

         Since 1975, Doris has owned a 40-acre tract of land (the Ostwald 40) used for farming and located in Dodge County, Nebraska. The location of the Ostwald 40 is described as the "Northwest quarter of the Northeast quarter (NW1/4NE1/4), Section 13, Township 20 North, Range 5, East of the 6th P.M." Vernon ...


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